4 Executive summary (1) In the last decade, people, the economy and our societies have greatly benefited from the growth in both internet connectivity and content and applications available to them. This growth has, so far, largely relied on the so-called best-effort internet. (2) In the last few years, some ISPs have begun to move away from pure best efforts and started to introduce some degree of prioritisation i.e. by introducing specialised services or managing traffic of capacity-hungry applications such as peer-to-peer (P2P). In some cases, other practices have arisen such as blocking or shaping traffic from certain applications, e.g. VoIP. All of these developments are spurring a debate about their implications for the future development of the internet. (3) The debate that has emerged over the course of the last decade at the initiative of content and application providers (CAPs) and internet users is about whether these developments may be against their interest. More precisely, under what circumstances could these developments raise users concerns? (4) Among others, the following concerns have been suggested: - the development of premium-priced priority internet access offers, which would allow operators to not only (a) better meet demand from users and CAPs but also (b) extract value from bandwidth scarcity, could reduce incentives to invest in new capacities (reducing best-effort internet to a socalled dirt road ); - the development of applications or protocols that block or reduce the possibilities of development of new services on the internet, and that may lead to the situation that purchasing a plain internet access offer could in the end prove to be too expensive for the average citizen; - the hindering of services by ISPs vertically integrated with CAPs, with the risk of increased development of walled gardens, reducing the possibilities for one man in a garage to create new successful services; - the development of bilateral agreements between ISPs and CAPs for the prioritisation of the CAP s content on the ISP s network, with the risk of evolving toward a two-speed internet, where only big and already existing CAPs can reach the user with a good quality of service, hence limiting the opportunities for new entrant CAPs and the man in the garage. (5) In BEREC s response to the European Commission s consultation on the open internet and in Europe, 1 was described as follows: A literal interpretation of network neutrality, for working purposes, is the principle that all electronic communication passing through a network is treated equally. That all communication is treated equally means that it is treated independent of (i) content, (ii) application, (iii) service, (iv) device, (v) sender address, and (vi) receiver address. Sender and receiver address implies that the treatment is independent of user and content/application/service provider. There have been and will continue to be deviations from this strict interpretation. Some of these deviations may well be justified and in the interests of users but 1 BoR (10) 42 of 30 September

5 other forms could cause concern for competition and society. To assess this, NRAs will need to consider a wider set of principles and regulatory objectives. (6) This description of is very close to the situation in a world of widespread pure best efforts, even if best efforts and are not exact synonyms. We continue to use this definition as a useful working benchmark for the purposes of this report. Context: legal environment and BEREC policy background (7) The European regulatory framework assigns a responsibility to NRAs, in ensuring the efficient operation of electronic communication networks in general, and the internet in particular, taking into account the principle of, as well as the various restrictions weighing on market players. To meet this responsibility, BEREC has set itself the task of identifying and promoting rules and best practices that apply regardless of network technology, in a manner that is fair to all of the different stakeholders, and acknowledging that this topic has a dual dimension: technicaleconomic and social responsibility. In this regard, the following consideration (in recital (5) of the Framework Directive) should be borne in mind: The separation between the regulation of transmission and the regulation of content does not prejudice the taking into account of the links between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection. (8) More specific demands are contained in the new telecom package that was adopted in December 2009, where more emphasis is given to symmetrical regulation, providing NRAs with more wide-reaching objectives and tools than before for achieving a threefold goal (as reflected in Article 8 of the Framework Directive): - To achieve the overarching objective of guaranteeing access to content for the interest of the citizens of the European Union: promoting the ability of users to access and distribute information or run applications and services of their choice (Art. 8 4.g). - To ensure that electronic communications networks run smoothly, in other words to guarantee a satisfactory quality of service; this is covered by traditional objectives falling on NRAs, notably: ensuring that the integrity and security of public communication networks are maintained (Art. 8 4.f) and encouraging [ ] the interoperability of pan-european services, and end-to-end connectivity (Art. 8 3.b). The new power to set a minimum quality of service (see hereunder) may also be viewed in this light. - To enable the long-term development of the networks and services through innovation and the development of the most efficient technical and business models; competition plays a fundamental role here, hence the importance of NRAs objective of ensuring that there is no distortion or restriction of competition in the electronic communications sector, including the transmission of content (Art. 8 2.b). 5

6 (9) In its response to the Commission s 2010 public consultation, 2 BEREC had already started analysing the reach and implementation possibilities of relevant tools in the framework to address issues (including, inter alia, Article 5 of the Access Directive, or disputes settlement in Article 20 of the Framework Directive). Two areas were most recently investigated by BEREC: - The obligations to be transparent with users about any possible restrictions on usage, or traffic management techniques, implemented by network operators (Arts. 20 and 21 of the amended Universal Service Directive, USD). See BEREC Guidelines on transparency in the scope of published in December A new power to set a minimum quality of service, overseen by the Commission, in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, due in particular to certain traffic management practices, in accordance with Article 22 of the amended USD. This was the subject of a first Framework Report adopted by BEREC in 2011, which is to be followed by Guidelines in One aspect the latter will consider in particular is to what extent the provision suggests that quality of service does not pertain only to the users point of view, but also includes the terms extended to CAPs for routing their traffic. Recital (34) associated with this clause (in the Citizen s Rights Directive amending USD) notably stipulates that those procedures should be subject to scrutiny by the national regulatory authorities, acting in accordance with the Framework Directive and the Specific Directives, and in particular by addressing discriminatory behaviour. (10) This last reference illustrates one of the many links between the different aspects of the work streams, and in particular the concern about discrimination that is considered in this report. Bearing in mind those links, this report will further develop BEREC analysis with respect to the various objectives set out below, in particular by assessing the static and dynamic impact of potential differentiation practices by ISPs. Approach of the report (11) This report examines and assesses the potential impact on users of departures from at the initiative of ISPs. We define a differentiation practice as any decision of ISPs or any agreements between ISPs and CAPs or ISPs and users entailing that some traffic from or to some CAPs or users, or related to specific application or protocol, is treated differently i.e. slowed, accelerated or blocked from those of other CAPs or users or other applications or protocols. These differentiation practices could include situations in which CAPs are charged. This report examines which differentiation practices may or may not in principle harm the user s interest and have a negative impact on competition and innovation, both in 2 BEREC Response to the European s Commission consultation on the open internet and in Europe was adopted on 30 September

7 electronic communications markets ( networks ) and in content, 3 application and services markets ( content ). In doing so, it aims to provide a conceptual framework for assessing potential user harm concerns and identifies the main elements of such assessment. (12) The potential effects on users include both static and short-term impacts and the longer-term dynamic implications. The former capture the impacts on users in terms of prices and quality of their current internet connection and of the content and applications services that are available today. Dynamic impacts consider the incentives to invest and innovate in the different parts of the value chain. In particular, it considers the impact of differentiation practices on the incentives to invest and innovate of the various parties. This will ultimately have an impact on users. In this respect, the specific characteristics of the internet should carefully be taken into account, in particular the open platform aspect (e.g. universal connectivity, very low entry cost, usage agnostic or separation of network and applications layers, innovation without permission ) and network externalities. (13) Upholding the principle of neutrality concerns all of the players involved in the internet chain, whether the parties operating electronic communications networks routing internet traffic, or the many and various providers of services in the information society. Given this, some of the questions raised in the debate around fall outside the realm of the rules and regulations that apply only to electronic communication networks. These networks nevertheless occupy a central place on the internet chain and among the players that populate it. Indeed, the entities that operate these networks have a special responsibility because of their essential function of routing traffic between users. ISPs are therefore the first ones affected by the demand for neutrality. (14) In this report we focus on differentiation practices that are instigated by ISPs. This is to say that we do not examine differentiation practices that are imposed on ISPs by legal requirements, whose relevance and legitimacy are out of the scope of this report. Nevertheless, this does not preclude us from considering the way in which such requirements are implemented, since the specific technique chosen by an operator may not be appropriate with regard to the fulfilment of the abovementioned objectives. (15) BEREC acknowledges that, beyond the considerations highlighted above (competition, innovation and harm to users interest), there are other aspects, which are a part of this debate, e.g. issues related to freedom of speech or access to certain type of content which may be deemed socially useful. For instance, BEREC mentioned in its response to the public consultation of the Commission that There have also been some concerns expressed relating to the effective exercise of fundamental rights and freedoms such as freedom of expression or privacy, that could arise if operators were to give preferential treatment to some kinds of data flows. These considerations are not the focus of the report, and should be examined in the light of relevant legislation. 3 The need for NRAs to consider impact on innovation at both ISP and CAP level is also underlined in the regulatory framework; see, for instance, Recital (8) of the Better Regulation Directive (amending the Framework Directive and the Specific Directives): In order to achieve the goals of the Lisbon Agenda, it is necessary to give appropriate incentives for investment in new high-speed networks that will support innovation in content-rich internet services and strengthen the international competitiveness of the European Union. 7

8 Framework to analyse differentiation practices (16) In this document, BEREC proposes a conceptual framework to analyse differentiation practices, applying it to concrete examples. This analysis is based on the potential effects of the practices on users, either directly (through the impossibility of using some services) or indirectly (through, for example, a reduction in alternative choices). (17) The proposed analysis covers: - ISPs incentives to discriminate (basically based on revenue maximisation through their vertical integration or cost minimisation in the absence of any vertical integration). - The ISPs ability to perform the discriminatory practices in a sustainable manner despite users possible reaction, which depends, among other things, on their position in the market. - Finally, the dynamic and static effects of these practices, acknowledging the particular features of the internet ecosystem. As stated above, owing to network effects of the internet, any restriction could create entry barriers either for users or, in particular, for CAPs, interrupting this virtuous circle and affecting future consumer welfare. (18) The above framework has been applied to example cases to test it and try to obtain more general lessons that could be applied in other situations that could arise in the future. Therefore, the purpose of these examples is not to provide definitive answers these can be reached only in specific cases and examining the evidence available but to try to identify what are likely to be the key elements of any competition analysis. (19) According to the data gathered by BEREC, most of ISPs offer internet access with no application-specific restrictions. However, specific practices (such as blocking or throttling of P2P traffic or VoIP) more often occur in the mobile network than the fixed network sector. (20) Accordingly, the practices considered are: - VoIP blocking on mobile internet access service; - P2P blocking on fixed internet access service; - differentiation in the conveyance of traffic of CAPs (quality and/or price). Main findings (21) Vertical integration gives ISPs incentives to implement differentiation practices, as they could reduce competitive pressure on their own retail services. The paradigmatic example of this is VoIP, where ISPs are providing voice calls through the traditional fixed or mobile network, while users could find substitutes on the internet (maybe not perfect substitutes but at least viable substitutes for some types of calls) at lower prices (even for free). Indeed, this practice is one of the most widespread, according to the data gathered by BEREC. (22) As this differentiation has the aim of foreclosing, the effects on users are high because these practices have both static and dynamic effects. The less the competition, the higher the prices, and, in addition, restrictions on CAPs could have effects in the long run of limiting their growth by reducing their potential demand. 8

9 (23) In those cases where the ISP providing users with internet acces (internet access provider, IAP) is not vertically integrated, potential differentiation practices could affect content and applications not provided by the operator. In these cases, the rationality behind such practice is either cost reduction (understood in broad terms such as network costs, but also congestion management) or income increase. Traffic management could have the aim to move from the current no commercial relation practice between CAPs and IAPs to a scenario where the IAP starts charging CAPs, in order to increase the total income of their operations. (24) BEREC has acknowledged that IAPs should have the opportunity to manage their networks to increase efficiency, minimising the resources needed to provide the service and assuring the best deal to all users. It is important to note that congestion has some hidden costs that are difficult to measure, as it affects all users connected to the network. In this sense, a fair traffic management could enhance welfare. (25) These arguments are valid only if the restrictions are done on a non-discriminatory basis among all content and applications providers, and according to objective criteria such as consumption of resources. In other cases, the rationale behind the IAPs behaviour could be distortion of competition. (26) It is important to bear in mind that it could be also the case that IAPs opt to restrict or block, in broad terms, the content accessible by users from their connections. In this case, the above conclusions might not be valid because the final outcome of taking all restrictions together is harm to users by reducing the available choice from their connections. This could be especially problematic in an environment where IAPs tend to block or degrade applications or CAPs on a general basis, including when, for example, a particular IAP blocks a specific application or CAP, another IAP blocks a different application or CAP, and so on. In this context, current internet features would be very difficult to maintain, affecting users welfare. (27) The report has, nevertheless, identified some key elements that could potentially deter IAPs from implementing differentiation practices that harm users: - Competition observed at retail level. NRAs have tools under the current framework to enhance competition and prevent the strengthening of significant market power (SMP) positions. Any measure aimed at forbidding an anticompetitive practice would be a second best compared with a scenario where the market develops in an effectively competitive manner. - Consumer awareness, market transparency and low switching costs. The sustainability of restrictive practices would depend on consumer awareness of differentiation practices and their possibilities for exerting pressure on the IAPs by their purchasing decisions. The more easily a consumer could detect a restrictive practice and change its IAP, the stronger the pressure on IAPs to reduce unfair and discriminatory practices. (28) Finally, when retail competition is not enough to grant an adequate output for end users (which does not need to be exactly the same as the one observed today), NRAs have different ways to deal with specific behaviours of the IAPs. (29) In the presence of a SMP operator, regulation under the common regulatory framework of electronic communications networks and services and competition law has tools to address some potential problems. (30) In addition, the revision of the existing Directives has granted additional tools to NRAs, e.g. in the form of minimum quality requirements, which could on the basis 9

10 of the decision taken by the NRA considering the particular circumstances of the case be applied to operators, independent of SMP in the retail market. Resorting to QoS provisions appears to be an effective action in a situation where, even absent SMP, discriminatory practices that do not have any legitimate objective and fair rationality become more frequent. 4 In this case, users connections may be degraded by such practices and future innovation might be discouraged. Application of the QoS provisions could also be relevant in presence of SMP operators, as a complementary remedy to pro-competition tools, taking into account that the practices undertaken by the SMP operator(s) could be those that have been deemed particularly detrimental for the development of competition, in particular in instances of foreclosure. Imposing minimum quality requirements should come only after a thorough analysis of the practices and their situation in the context of a market, which are detailed in BEREC s Guidelines for quality of service in the scope of. 4 The mediation by NRAs in conflicts arising between electronic communications operators and CAPs may also be an option, on a case-by-case basis, when on the basis of national law NRAs have been granted the possibility to intervene to solve such cases through dispute settlement procedures. 10

11 1 Introduction (31) In the last decade, people, the economy and our societies have greatly benefited from the growth in internet connectivity and content and applications available to them. This growth has, so far, largely relied on the so called best-effort internet. (32) In the last few years, some ISPs have begun to move away from pure best efforts and started to introduce some degree of prioritisation, e.g. by introducing specialised services or managing traffic of capacity-hungry applications such as peer-to-peer (P2P). In some cases, other practices have arisen such as blocking or shaping traffic from certain applications e.g. VoIP. All of these developments are spurring a debate about their implications for the future development of the internet. (33) Further complexity is brought into this debate through considerations on long-term innovation and fundamental freedom and their link with unrestricted access to the internet. Leveraging on the fundamental role of competition, the revised framework puts forward the tools to make this competition effective, addressing market failures and empowering the customer (representing the demand side of this two-sided market ). It also explicitly emphasises the need for NRAs to promote the ability of users to access and distribute information or run applications and services of their choice. (34) In responding to the Commission 2010 consultation, stakeholders referred to identification and economic assessment of traffic management rules as the major issue regarding. Prioritisation implicitly has the consequence of discrimination, but a number of aspects should be taken into account to evaluate possible negative consequences for the level of competition, innovation and the interests of users. In 2011, BEREC initiated an economic analysis of the potential and theoretical effects of discriminatory behaviour. (35) The result of this analysis is this report, which is organised as follows: (36) First, we set the wider context by discussing how the internet is currently organised, including recent and likely future trends. We also examine the value chain that applies to the internet ecosystem (Chapter 2). (37) Second, we describe the possible reasons that may lead ISPs to introduce differentiated practices. We have classified them as ranging from legitimate motivations i.e. to fulfil legal requirements or to ensure network security and integrity to motivations that may be more difficult to classify in relation to their effects i.e. providing differentiated services to users or CAPs or protecting existing services. Then we describe the kind of direct and indirect effects that may be produced by these practices (Chapter 3). (38) Third, we provide an analytical framework for assessing the possible impact on endusers of various differentiation practices (Chapter 4). (39) Fourth, we consider some illustrative differentiation practices to which we apply the above analytical framework. We have identified a number of practices and we assess their impact (Chapter 5). (40) Finally, we try to draw some conclusions and identify the key themes that have arisen from the discussion of the analytical framework. We also raise some issues relating to the remedies available to NRAs (Chapter 6). 11

12 2 The Internet value chain 2.1 Context and recent evolutions (41) The internet connectivity market has grown from zero to a multi-billion-euro business in 15 years. The majority of the European population use the internet with some kind of broadband connection, and the industry has invested billions of euros in updating the old network and rolling out the new fibre technology in order to provide better services at a lower price to more customers: that is, the industry has produced investments in infrastructure and ensured an ever-increasing bandwidth capacity. In the same period, the industry showed a high level of innovation in content, too. Barriers to entry in the market have been very low thanks to the open nature of the internet. Any content provider bloggers, website owners, SMEs and large corporations for a relatively low level of investment to buy a domain name, rent space on a server and implement its application or software, has had the opportunity to test its ideas and their relative value in the marketplace. As a result, new services have been made available to users: browsing, mailing, P2P, instant messaging, VoIP, videoconference, gaming online, video streaming, etc. This development has taken place mainly on a commercial basis without any regulatory intervention. (42) Mirroring the market evolution, the traffic conveyed on networks has been increasing continuously. In 2011, worldwide IP traffic, according to Cisco s estimation, stood at 30.7 exabytes per month and outstanding growth rates are expected in the coming years. Overall IP traffic is estimated to increase nearly threefold by 2015, to reach 87.3 exabytes per month. Cisco forecasts a slowing down of the annual rate of growth of IP traffic to 21 % in For Europe, the annual growth rate of international bandwidth usage levelled off to approximately 50 % in (43) For mobile data traffic, the rate of growth is higher than for fixed data traffic. However, this is particularly because the increase in mobile traffic starts from a significantly lower level. In 2011, mobile had a share of approximately 2 % of total IP traffic. Although the growth rate for global mobile data traffic was about 152 % in 2011, it is expected to decline to 64 % in WIK-Consult (2011, pp ) based on Cisco and WIK calculations. 12

13 Figure 1: Global IP traffic developments Source: Cisco, 2012 (Visual Networking Index). (44) In parallel with market developments, rapid and incessant technology innovations that characterise the sector have enhanced the transformation of the internet ecosystem and the interaction between the various economic entities operating there. (45) The basic feature of the internet ecosystem, from its outset, has been the besteffort paradigm. The term best-effort delivery describes an electronic communication service in which the network does not provide any guarantees that data is delivered or that a user is given a guaranteed end-to-end quality of service level or a certain priority class. In a best-effort network, all users obtain best-effort service, meaning that they obtain unspecified variable bit rate and delivery time, depending on the current traffic load. By default, unless instructed otherwise, besteffort delivery networks treat all user service requests (demand for network capacity) equally, irrespective of their nature or content. (46) Nowadays, traffic management techniques allow ISPs to manage traffic more extensively and precisely and to differentiate the packet routing, depending on the techniques used, based on content, applications, transport/access services and users. In general, traffic management allows for a wide range of operations, each highly heterogeneous, such as, inter alia, the construction of fast lanes (i.e. traffic classes) for certain types of data (so-called prioritisation); the provision of guaranteed network capacity to specific users; prevention of access to illegal content; authentication of customers; blocking of viruses; or the ability to block or degrade certain content. Taken together, traffic management offers potential benefits to stakeholders and may contribute to enhanced social welfare (e.g. by managing/reducing congestion); on the other hand, traffic management may be used to implement strategic practices, using restrictive techniques to the benefit of the operator but, in some cases, to the detriment of users (or at least a part of them). (47) Furthermore, internet applications are becoming more and more diverse and starting to demand specific requirements depending on their features (for example, real-time 13

14 applications). In general, relevant parameters in the internet experience are, inter alia, the bitrate or throughput (the amount of data transmitted in a unit of time), delay, jitter (time variation of the average delay) and packet loss ratio. According to the type of application, some of these parameters assume particular relevance and become biting constraints in the service provision. For example, P2P quality depends mainly on the effective bitrate available, whereas delays in packet transmission may be tolerated with minor effects on the P2P quality; therefore, it is classified as a capacity-hungry application. Vice-versa, the quality of a VoIP call, being a real-time communication application, relies on the minimisation of mouth-toear delay. As far as applications relying on internet capacity require different transmission characteristics and the quality perception of users depends on the application performance, operators could need to implement traffic management tools to allow these new applications to appear and grow (discussed later in this report). It is also a fact that VoIP applications offer good speech quality based on ordinary best-effort transmission despite the claim that specific traffic management may be needed for real-time applications. 2.2 Value chain Retail players in the value chain (48) The abovementioned market developments and technological innovations have been shaping and modifying the commercial relationships between the different actors in the internet value chain. (49) In the value chain described in the document, three major economic entities are active (see Figure 3): - Internet service providers (ISPs) or internet access providers (IAPs), namely network operators (including fixed and mobile network operators, FNOs and MNOs) and virtual operators (including resellers and mobile virtual network operators, MVNOs), which provide internet access services to users, as well as other intermediary operators or business connectivity providers. ISPs/IAPs are paid for their traffic services by CAPs or users. - Content and applications providers (CAPs). CAPs offer a wide array of activities such as content aggregation and search engines, messaging applications, entertainment and transactions, and include different players such as over-the-top, media companies, right-holders, users that generate content and even ISPs. CAPs are paid for their services by their users and/or by advertisers. - Users 6 who purchase access to the internet by IAPs and use (free or paid) content and applications provided by CAPs. The user can be either a consumer or a business user. Users derive utility from the consumption 6 The definition adopted in this document could be, in some cases, more restrictive than the definition included in the Framework Directive, where an end-user means a user not providing public communications networks or publicly available electronic communications services. According to this definition, CAPs could be considered as end users. However, in this report, for the aim of clarity, we have restricted this concept to any legal entity or natural person using or requesting a publicly available electronic communications service through retail internet access markets not including CAPs. 14

15 of two complementary goods: connectivity paid for and provided by the IAP, and contents provided by CAPs 7 that may be free of charge or paid for. (50) Manufacturers of devices, software and hardware solutions also play an important and ever-increasing role in the internet access market because, among other things, they are interested in developing new solutions and new equipment to facilitate the dissemination of data services. However, the impact of the ICT sector is outside the scope of this report, which it is focused on the issues related to the debate that may arise from the behaviour of electronic communications services providers. (51) The interaction of these economic entities leads to the delivery of services to users who (i) purchase access to the internet by ISPs and (ii) use (free or paid) content and applications provided by CAPs via handsets, devices and goods produced by ICT manufacturers. Figure 2: Simplified value chain (52) In the value chain for the internet as a whole, ISPs have a particular role as a hub. On the one hand, ISPs provide access to electronic communication services to users and, on the other hand, they enable interaction between CAPs and users. 7 In the BEREC report An assessment of IP-interconnection in the context of, the user in retail internet access markets is defined as a content and applications user, given that the term user as defined in Art. 2(n) FD is more comprehensive (as stated above). 15

16 ISPs thus play the role of enablers or platform intermediaries, making viable the transactions between users and CAPs. (53) It must be emphasised that CAPs interact with users on so-called content and application markets, but typically these interactions do not necessarily involve a direct connection and do not involve electronic communication services markets. The physical link between CAPs and users goes through the electronic communication services (ECS) markets with ISPs acting as an intermediary. (54) The ECS markets around the internet are a complex system where various kinds of players can be distinguished. The abovementioned value chain is intended to represent, in a stylised manner, the main categories of economic agents operating, at the retail and wholesale level, in the digital ecosystem. (55) Nevertheless, it is clear that digital ecosystem markets are characterised by a plurality of (potential) transactions. In fact, each economic macro-entity identified above encompasses different categories. CAPs encompass content, applications and services available online. Within CAPs, another relevant distinction might occur between internet giants and traditional broadcasters offering their media services through the internet. ISPs may be distinguished between network operators, which provide services on basis of the networks they hold, and service resellers, which provide retail services on the basis of intermediate inputs acquired from network operators. (56) Such a broad characterisation of the retail value chain based on three main entities (CAPs, ISPs and users) for sake of clarity is instrumental for the analysis of potential competition issues on the basis of the general conceptual toolbox provided hereinafter, although further analysis of the value chain may be useful to address specific cases falling within the scope of. A more detailed view of these interactions and the underlying contractual relationships is provided below Scope of the report (57) In the questions about and differentiation practices, contents and networks are closely tied to each other. This often leads one to a consideration of the whole value chain when addressing the debate. (58) In the internet ecosystem, operators which convey information over networks are playing a central role because they are the unavoidable link needed by users who want to send or receive information over the internet. (59) NRAs remits and powers are focused on electronic communication networks and services, as framed by the European legislation. 8 Consequently, this report deals with the network neutrality debate: it mainly addresses the issues met on electronic 8 Particularly Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (hereinafter Access Directive); Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive); Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users rights relating to electronic communications networks and services (Universal Service Directive). 16

17 communication markets and has a close look at internet service providers regarding their role of transmitting information between users. (60) When analysing the competitive situation of electronic communication markets, NRAs do take into account the content which is conveyed over them, following the policy objectives set by the European Framework, which notably entitle them to ensure that there is no distortion or restriction of competition in the electronic communications sector, including the transmission of content (Framework Directive, Article 8.2.b) and to promote the ability of end-users to access and distribute information or run applications and services of their choice (Article 8.4.g). (61) This focus from BEREC and NRAs on electronic communication markets does not mean that other markets, including content and application markets, should be outside any form of scrutiny. Questions and debates arise as regards, for example, fair competition on the online search market (sometimes referred to as search neutrality ), or the control that operating systems (OSs) manufacturers may exert on the content and services provided over their platforms (terms and conditions of online applications stores). This could be referred to as the digital economy neutrality debate. (62) In this regards, it should be noted that the competitive situation of content and application markets is receiving close attention from competition authorities. Notably, the web search market and the specific situation of Google have been extensively scrutinised by the European Commission Upstream level (63) For the sake of clarity in the remainder of the document, it seems useful to introduce a more detailed description of the electronic communication services inside the internet value chain. Figure 3 below identifies players and markets in a schematic way. In this figure, players refer to specific functional roles: even if one person or undertaking generally has one specific role in the value chain and is thus represented at a particular layer in the figure below, it can be the case that they are also active at other parts of the internet value chain. 17

18 Figure 3a: Description of the value chain (64) ISPs are actually involved in a number of different product markets, which all come under the umbrella of ECS markets shown in the previous diagram. Each ISP is active in one or several markets, which we propose to distinguish in this report for the sake of clarity and for which we propose the following descriptions: - IAPs (internet access providers) are ISPs for users, in retail internet access markets. - CPs (connectivity providers) are ISPs providing services to CAPs in internet connectivity markets. In some cases IAPs and CPs could be the same ISPs. - ISPs interact with each other in wholesale interconnection markets. 18

19 Figure 3b: Distinction between different electronic communication services and different roles of electronic communication providers in the value chain, mainly for the sake of clarity in this report (65) Within the IAP category, access network operators (FNOs and MNOs) have traditionally borne the entire high cost of local access infrastructure deployment to provide broadband connectivity and internet access services and have passed this on to their customers (users) through access and usage charges. Similarly, once the access network has been installed, the IAPs upgrade capacity transmission to cope with new customer connections and new traffic requirements arising from new services and applications, and they pass this cost to their customers. (66) In turn, CAPs offer content and applications over the top of the internet connectivity bought by users from IAPs. Content may be provided either for profit (on a commercial basis) or on a not-for-profit basis. Likewise, content may have a different impact on networks (depending on the technical requirements needed for each type of application) and may belong to different product sectors/markets. In some cases those content/applications can include markets traditionally occupied by network operators (such as voice services). (67) At present, IAPs are mainly charging users for their internet access, and generally do not charge CAPs, which need IAPs to access the users. This situation has been denominated, by the economic literature, as the zero price rule. However, we consider that this expression could be misleading as it gives the impression that CAPs are not paying for the connectivity services. In the current situation, more often (with some exceptions for some particularly large CAPs developing their own networks), IAPs have no direct contact and therefore no direct economic relationship with the CAPs that benefit from those IAPs networks which enable them to make their services available to users. However, this does not mean that 19

20 CAPs are not paying for connectivity services as they indeed do through CPs. For this reason, the current situation could be termed a no commercial relation practice. (68) ISPs (IAPs and CPs) have to interconnect their networks with other ISPs. Several forms of interconnection exist, which can be broadly categorised into peering (where two networks agree to exchange their traffic, most often for free when they have a balanced interest but sometimes at a non-zero price) and transit (where one network contracts a transit provider to send traffic across the internet). 9 In most cases, ISPs (and particularly the smallest ones) pay for the provision of upstream transit that connects them to the rest of the internet. (69) While users pay an IAP (on the retail internet access market) in order to access the internet, CAPs will also buy services from one or several CPs on their side of the internet in order to make their content available. That is, users at the edges of the internet each pay for their own connections. (70) In summary, payments mainly take place at the edges of the internet, which means, generalising, that CAPs just pay their own CPs to make their content available, but do not have to pay the IAPs that have the connection with the user in order to reach their users. Conversely, users do not have to pay the CP that hosts the content they wish to access. This feature has been considered one of the key elements that allowed the fast development of the internet. (71) At the same time payment mechanisms associated with interconnection markets allow for the financing of the inner networks and operators of the internet, i.e. those who are not directly at the contact of users (or at the edges ) and do not receive direct revenues from them: operators may pay each other or organise mutual traffic transport by barter transactions, depending on their interconnection agreements. 2.3 Trends and debates (72) The traditional management, including the pricing structure, of the internet ecosystem is, according to some players, under pressure for a number of reasons. (73) First, they argue that the demand for data transmission over the internet is constantly growing as a result of the development and the uptake of new applications based on P2P communication, video streaming etc., and ISPs have to cope with this growing demand. In other words, without incremental investment (whose size is nevertheless debated, as it also depends on technical progress, which has been pretty steady over the last years), network capacity may become a scarce good. (74) Second, it is argued that some CAPs are increasingly using the internet to deliver new applications to users and could be demanding a level of quality that may go beyond the traditional best effort quality of internet access. A demand for qualitydifferentiated services has always been present and can be met either by a growing supply or by new traffic management practices. 9 BEREC is working on a report An assessment of IP interconnection in the context of covering qualitative information on the different types of the commercial IP interconnection agreements. This work will continue and the publication of a BEREC Report on IP interconnection is expected during The analysis of competition and the technological developments of the IP interconnection market may complement the discussion and analysis performed in the present document. 20

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